AG2003/9309, Transcript of Proceedings [2003] AIRCTrans 5653 (17 December 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

O/N 1182
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2003/9309

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Lutheran Homes Inc and Others for
certification of the LHI Retirement Services
Nursing Employees, (Aged Care) - Enterprise
Agreement 2003

ADELAIDE

11.15 AM, FRIDAY, 5 DECEMBER 2003

PN1

MR T.E. EVANS: I am from Business SA, which is the South Australian Employees Chamber of Commerce and Industry. I wish to introduce to you at the bar table MR T. GRAY, who is the Chief Executive Officer and with me, sir, I have two employee representatives, MS C. BROPHY and MS C. TINTOR, who have signed the stat decs before you. I also wish to apologise to keep you waiting from 11 o'clock and I wish to thank you for your patience in that. Sir, I believe that the time you have allowed us to do that will resolve an issue that could potentially have gone a bit longer, so I will make some comments to that in my presentation shortly, but I appreciate your patience.

PN2

THE SENIOR DEPUTY PRESIDENT: Mr Evans, you have tested it this morning. I've been standing out in the corridor wondering why it is I ought not call the matter on and dismiss it for want of an appearance, but I will accept the apology on this occasion.

PN3

MS K. EDWARDS: I appear on behalf of the Australian Nursing Federation SA Branch.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Ms Edwards. Mr Evans, I have in this matter the requisite statutory declarations. Can I take it that you would seek that I rely on those statutory declarations, such, that I should certify the agreement?

PN5

MR EVANS: Yes, please.

PN6

THE SENIOR DEPUTY PRESIDENT: On that basis, unless there is anything you want to add to them, I don't require you to address me relative to the specifics of the Act.

PN7

MR EVANS: I appreciate that, sir, and I'm quite comfortable for you to have taken that view with us, however, I think there are some issues here that I do need to address you with. I think you are aware that this matter has been a bit of an issue that has occurred and I refer to your decision of 31 July in respect of the process leading up to this. However, one issue that I do wish to provide a comment to you about and it is the matter that has sorely sought your patience, and that was the letter provided to you of 20 November 2003, from the Australian Nursing Federation which advised that pursuant to section 170M(3), sir, they were going to seek to be bound by the agreement.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes.

PN9

MR EVANS: Now, on the reading of that particular agreement of that particular letter, sir, it would be the view of Business SA that that letter would not meet the test of 170M(3), in terms of that there has to be proof that at least one member under 170D(3) must have requested the union to be a party and must therefore have proof of that to be tabled to you today. Now, we don't need to go down that path now and the reason that I - - -

PN10

THE SENIOR DEPUTY PRESIDENT: Mr Evans, that is not what the Act says. The Act simply says that I need to be satisfied.

PN11

MR EVANS: You need to be satisfied?

PN12

THE SENIOR DEPUTY PRESIDENT: It does not say that I need to be satisfied today.

PN13

MR EVANS: I accept that, but the way you need to be satisfied is by proof that one person has requested to you. The submission I'm going to put to you now, sir, and the reason for the inappropriate behaviour of seeking a small delay, was we have now got that matter resolved. The enterprise agreement before you, sir, is a section 170LK, this is the third time this one has been to the vote and on each occasion it has gone out as a document which does not include the union as a signatory to the party, or party to be bound pursuant to clause 3.

PN14

However, on the evidence that I could produce you in documentary form and that Ms Edwards could produce to you in documentary form, the union has been involved in meetings from 26 March, they have exchanged correspondence between my member and themselves since the end of March/April right through. The ANF have been a party to all the discussions in this process as you are clearly aware, hence, the matter that you had to decide for us on 31 July.

PN15

Now, despite all of that and despite the agreement going out to vote on 14 October and despite that agreement going to the union on 3 October and being endorsed by a letter of 8 October that the union was not to be party to the agreement. The agreement has gone out as a non-union party bound agreement. Now, the concern that we - - -

PN16

THE SENIOR DEPUTY PRESIDENT: The agreement has gone out a an LK agreement, as I am understanding the statutory declarations.

PN17

MR EVANS: I beg your pardon, sir?

PN18

THE SENIOR DEPUTY PRESIDENT: The agreement has gone out as an LK agreement.

PN19

MR EVANS: Absolutely, and that is what it is.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes.

PN21

MR EVANS: However, what has now happened with the letter of 20 November? The letter of 20 November is now a formal request from the ANF to say: we would like to be a party to the agreement. The concern that we have is this, in all the negotiations and consultations that my member has participated in this since 26 March, the ANF has been involved, agreed. The ANF has not sought change, nor the employees sought change to have the union as a party to the agreement.

PN22

My members' request to me today was to seek your assistance, your guidance is, if the request of the ANF of 20 November is to be met, does this have to be met by another vote going out? We would have significant concern if this had to go to vote because, technically, if you look at the requirements of the Act, sir, it could be that the agreement would have to be varied to include the union in and we don't think there is a need for that.

PN23

THE SENIOR DEPUTY PRESIDENT: Mr Evans, can I interrupt you. Are we talking about the same Act? Section 170M of the Act simply establishes that in a situation such as this, if before the application is heard by the Commission, a request is made by a union which meets the pre-requisites set out in that particular section, such that that organisation should be bound by the agreement, then provided I am satisfied in relation to the requirements set out in section 170M(3)(d), I must by order, determine that the agreement binds the organisation. It does not talk about the requirement that the agreement be put back to the vote. It does not talk about anything other than a determination by the Commission that the agreement is binding on the organisation that has made that request.

PN24

MR EVANS: There is a clear question in the statutory declarations that is required to be completed, that is, the agreement as to be approved, is the same that went out to vote. Now, if there is a request now to vary the agreement to include the ANF as a party that may raise the question that we have to go back to vote, sir.

PN25

THE SENIOR DEPUTY PRESIDENT: Mr Evans, I don't want to debate it with you. The letter that I've received from the ANF, dated 20 November 2003 - and I take it we are referring to the same letter?

PN26

MR EVANS: Yes, sir.

PN27

THE SENIOR DEPUTY PRESIDENT: Does not ask me to vary the agreement, it simply asks me to make the ANF bound by the agreement pursuant to section 170M(3).

PN28

MR EVANS: Yes, I appreciate that, but the question that my member asked me for clarification and was the issue that we wanted to clarify which we now have is: does that mean that the agreement - that all of their nurses, 56 nurses have agreed and endorsed, does that agreement then need to be varied to include them in it? I've said the answer can be "yes" and it can be "no". It can be "yes", that there should be a specific inclusion to be - - -

PN29

THE SENIOR DEPUTY PRESIDENT: I will tell you now, let's save the time, the answer is, no, the agreement need not go back to the vote, lest there be any doubt whatsoever in that regard.

PN30

MR EVANS: Thank you, that is the direction I've been receiving and on that, subject to you giving that clear direction which I now have, the discussion with Ms Edwards and I beforehand was that, if that was the case, if that was going to have to go back to vote and subject to the submission that Ms Edwards will make about being bound to the agreement either on transcript, or by a signature to the agreement, we would endorse them being bound to the agreement, that is the position that we have now reached and I appreciate your assistance in resolving that. Unless you have any further questions on this, sir, I am very happy to - - -

PN31

THE SENIOR DEPUTY PRESIDENT: Well, I do have some questions about the agreement, but I think I will deal with the preliminary issue of the request by the ANF of 20 November first of all. Ms Edwards, am I to understand that you reached agreement with Mr Evans over the extent to which the parties to an agreement that the ANF have at least one member whose employment would be subject to the agreement whose industrial interest the ANF is entitled to represent and who requested the ANF to seek to be bound by the agreement?

PN32

MR EDWARDS: Yes, you can sir.

PN33

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Evans is that your view?

PN34

MR EVANS: Yes Sir.

PN35

THE SENIOR DEPUTY PRESIDENT: Then I will indicate that on the basis of the agreement reached between the parties in that regard I am satisfied that the ANF meets the requirements set out in section 170M(3) of the Act.

PN36

MR EDWARDS: Thank you sir.

PN37

THE SENIOR DEPUTY PRESIDENT: Now, Mr Evans I have got some questions about the agreement. I need to make is absolutely clear to you and the employee representatives that my questions do not invite anyone to re-write the agreement. They simply go to clarifying a number of provisions of the agreement. Before I ask those questions I will though seek clarification from Ms Brophy and Ms Tintor such that, am I to understand that you two, or you both propose that I rely upon the statutory declarations provided to me?

PN38

MS BROPHY: Yes.

PN39

MS TINTOR: Yes.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes, and once again, if you do that I don't require you to address me on the detail of the situation and the background to the seeking of this application but if there is anything you want to add I issue the same invitation to you as that which I issued to Mr Evans. Now, the questions I am about to ask I will address to Mr Evans. The opportunity exists for either of you to either clarify his responses or indeed to disagree with them if you wish to do so. If you don't do so I will take it that you are in agreement with those responses and equally, Ms Edwards, I will issue the same invitation to you. Mr Evans, can I take you to page 2 of the agreement. Perhaps I should clarify - have our employee representatives got a copy of the agreement?

PN41

MS BROPHY: No.

PN42

THE SENIOR DEPUTY PRESIDENT: Have you got a copy of the agreement, Ms Edwards?

PN43

MS EDWARDS: Yes.

PN44

THE SENIOR DEPUTY PRESIDENT: I shall loan the employee representatives a copy from my file. The footer at the bottom of page 2 and indeed the following - at the bottom of page 2, indicates that the document was printed on 15 May 2003. It is a different footer to that included on the following pages. Shall I make anything of that?

PN45

MR EVANS: Sir, the answer to that is that the first draft document that we prepared was back in May, so when we started putting the document to the parties. As I've indicated to you that - this matter went to the vote in July and August and then subsequently on 14 October. When we were modified the agreement in consultation with the employees and the ANF, rather than change each page if it did need to be changed, we just changed the pages as required. So sir, in terms of clause 4 on page 3 for example, we did change the period of operation of that agreement at clause 4 from the first one that went out in May. So it was just a process of, rather than changing every page, every footer, we just changed the pages at the top.

PN46

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 5 on page 3, details the relationship to the parent award. I must say I got tangled up in the last sentence in that clause.

PN47

MR EVANS: Is the appendix A represented sir?

PN48

THE SENIOR DEPUTY PRESIDENT: Yes, well the sentence reads:

PN49

Wage rates contained in this agreement shall be calculated on the basis of those contained in appendix A of the Nurses' ANF South Australian Private Sector Award (2003) and in addition to those contained in previous enterprise agreements established for Lidder and Homes Retirement Services.

PN50

Am I to understand then that the parties are intended to say that while this agreement shall be read and interpreted wholly in conjunction with that award, except to the extent of an inconsistency, wages that might have their genesis in that award, have been added to over a period of time?

PN51

MR EVANS: Yes sir.

PN52

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN53

MR EVANS: What we were doing is protecting the variations by agreements as a wage base so rather than go back to the awards wage base sir is you would be where we - we protect from the last agreement wage base.

PN54

THE SENIOR DEPUTY PRESIDENT: Can I take you to clause 6.6.2 and .3.

PN55

MR EVANS: Sir.

PN56

THE SENIOR DEPUTY PRESIDENT: With particular reference to 6.6.3 which says that:

PN57

This review process to occur in conjunction with the expiry of this current agreement. Is it proposed that the review will occur over the life of the agreement or at the expiry of the agreement?

PN58

MR EVANS: Yes. Look, principally it will occur at the end but observations and discussions between the parties in particular the management of the Nurses and the Directors care about increasing staffing to meet the rest of the care levels which would occur on an ongoing basis, will be party to it. The principal commitment for this for the parties is at the end of the agreement will review how the staffing has gone over the life, to see whether the staffing and the hours of work provided to meet the care needs of the residents has actually been successful or not successful or could be better.

PN59

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN60

MR EVANS: Sir, this goes back to an approach of the ANF and the Aged Care sector, and in fact the private hospital sector, because of the nursing shortage to seek a base of staffing levels to try and protect that adequate and proper staffing was already provided. Now, we can't always meet that at the moment because of the problems with the RNs and ENs staffing but what we have done, the aged care sector already has its own practices in place and our member, LHA in particular where they meet regularly with their nurses to say: how are we going with the current staffing to the care levels of our clients and we then adjust those hours as possible.

PN61

What the parties have agreed is that we will assess to see how that is going and whether in fact there is some better ways we can do it in the future and particularly attempting to put more impetus, and I think Ms Edwards may have a position on this - put more impetus on trying to encourage more people to become RNs so we can actually employ them back into help provide care.

PN62

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 7. Simply necessitates an observation that by referring to the 2003 Award, that award has already been varied in accordance with those award simplification principles.

PN63

MR EVANS: Yes, fair comment, sir. We will have to modify that in future agreements, thank you.

PN64

THE SENIOR DEPUTY PRESIDENT: Clause 15 on page 8. In particular 15.4. Is mandatory training to be provided at the award rate or at the rate set by this agreement?

PN65

MR EVANS: Sir, it would be no worse off for attending training.

PN66

THE SENIOR DEPUTY PRESIDENT: No, that is not my question. Well, maybe it does answer the question. Can I presume then that employees would continue to be paid the rate set by the agreement whilst undertaking that training?

PN67

MR EVANS: Yes sir, this agreement will over-ride it.

PN68

THE SENIOR DEPUTY PRESIDENT: Now, sub-clauses 6 and 7 both refer to policy positions. Am I to understand those policy positions are documented policies, that they are readily available to staff and that they may be changed during the life of the agreement?

PN69

MR EVANS: Yes they are sir.

PN70

THE SENIOR DEPUTY PRESIDENT: Clause 18 on page 10 refers to efficiency options. It details but one option. Am I to understand that the intention is to apply that particular arrangement in relation to annual leave loading?

PN71

MR EVANS: Yes sir, we only adopted one option in this particular agreement. As you are aware through your knowledge, Business SA and the Australian Nursing Federation have brokered a range of efficiency options since 2000 which various members of the aged care sector can adopt. Because this agreement started back in April/May, the negotiation process when we put this first document on the table. We used the 2000 approach which is in the current agreement as the base and we just haven't modified the word "option" out. You will find in other agreements that have been before you, like Churches of Christ, Fullarton Lutheran Homes, we have now modified the "option" word coming out of that sir.

PN72

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 20 relates to wages. Does the parties have a wages schedule they can provide me with?

PN73

MR EVANS: Yes Sir. I'm sorry I forgot to give it to you at the beginning of proceedings.

EXHIBIT #LHI1 WAGES SCHEDULE

PN74

MR EVANS: Thank you sir.

PN75

THE SENIOR DEPUTY PRESIDENT: Am I to understand - this is not intended to be a trick question, Ms Brophy or Ms Tintor, have you seen that document?

PN76

MS BROPHY: No.

PN77

MS TINTOR: I haven't seen LHI1 either.

PN78

THE SENIOR DEPUTY PRESIDENT: Yes.

PN79

MR EVANS: No sir, they wouldn't have seen it.

PN80

THE SENIOR DEPUTY PRESIDENT: The dilemma I've got in this regard is that I would expect the employee representatives and indeed, for this purpose, the union, would have the opportunity to have a look at that document to be satisfied as to its authenticity. I would rather those questions be resolved now than regret that I didn't resolve them, at some future stage.

PN81

MR EVANS: Yes, thank you sir.

PN82

THE SENIOR DEPUTY PRESIDENT: Now, Ms Brophy and Ms Tintor, if I provided a period of say 7 days within which you could have a look at this document, possibly even talk with the employer's payroll personnel, to make sure you are in agreement with it because it assumes some fairly critical importance in terms of this document. It, as I understand it, is intended to represent the basis upon which the wage increases that are detailed in the agreement will then apply. Would either or both of you then be able to provide some form of written advice, which could be in the form of an email, to my office so as to confirm your agreement with the document?

PN83

MS BROPHY: Yes sir.

PN84

MS TINTOR: Yes.

PN85

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Edwards would you be in the same position?

PN86

MS EDWARDS: Yes sir.

PN87

THE SENIOR DEPUTY PRESIDENT: Mr Evans, clause 22 on page 11 relates to undergraduate nursing students. Sorry, perhaps before I get to that, back on clause 20, subclause (4). Am I to understand that from that provision that provided the rates of pay established by this agreement exceed those that are detailed in the award, then those rates of pay would continue to apply?

PN88

MR EVANS: Yes.

PN89

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, clause 22, is the undergraduate nursing student classification detailed in LHI1?

PN90

MR EVANS: Yes sir, the rate of pay is at the very top structure, top right.

PN91

THE SENIOR DEPUTY PRESIDENT: Clause 23(1)(5) refers to a senior registered nurse or a senior enrolled nurse. Looking at LHI1, where would I find a senior registered nurse?

PN92

MR EVANS: You won't. The reason is that we - I've deliberately recommended that it not goes in there and the reason for my recommendation on that is because the payment for a senior enrolled nurse and a senior registered nurse is based on a qualification requirement or meeting the assessment requirements as per clause 23. As we identify on clause 23 it is there to identify a particular role and people who have also done additional studies and got some qualifications which are identified in there which is then actually practised in the work site. So consequently it is on case by case, individual employee assessment sir, and then hence the 1.5 payments will come in specifically to the individual nurse who qualifies.

PN93

THE SENIOR DEPUTY PRESIDENT: Thank you. Having said "thank you", you referred I think to 1.5 payments - see, in clause 1.5?

PN94

MR EVANS: Yes, clause 1.5.

PN95

THE SENIOR DEPUTY PRESIDENT: That would either be 1 per cent or 2 per cent?

PN96

MR EVANS: Yes sir.

PN97

THE SENIOR DEPUTY PRESIDENT: And clause 25 relates to the portability of long service leave arrangements. In the event that the new Lutheran Aged Care organisation did not accept staff members' accrued services and entitlements being transferred for the purposes of that continuity, I understand that those arrangements would remain as is. is that a correct understanding?

PN98

MR EVANS: Yes.

PN99

THE SENIOR DEPUTY PRESIDENT: Clause 32 on page 15 relates to overtime.

PN100

MR EVANS: Sir, that was really just there to re-affirm that, irrespective of the other arrangements, it is just felt that the current over-time arrangements would continue. We wouldn't - we agree what is the award.

PN101

THE SENIOR DEPUTY PRESIDENT: The award establishes penalty rates on the basis of time, time and half and double time and so forth. Those payments would be based on the rates detailed in this agreement.

PN102

MR EVANS: Yes sir.

PN103

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you Mr Evans.

PN104

MR EVANS: Thank you sir.

PN105

THE SENIOR DEPUTY PRESIDENT: Now, Ms Tintor or Ms Brophy do you want to add anything at all to Mr Evans' comments?

PN106

MS BROPHY: No.

PN107

MS TINTOR: No.

PN108

THE SENIOR DEPUTY PRESIDENT: You are happy with all of those answers. Ms Edwards?

PN109

MS EDWARDS: No, we concur sir.

PN110

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Evans, one further issue. Can you provide me with a copy of the advice that was sent out to employees advising of the employees' intention to make the agreement.

PN111

MR EVANS: Do you mean the package that went out on 14 October with this current agreement or the original one back in March in terms of commencing proceedings under 170LK, sir?

PN112

THE SENIOR DEPUTY PRESIDENT: I mean the advice pursuant to section 170LK upon which you propose that I rely in certifying this agreement.

PN113

MR EVANS: Thank you sir.

PN114

THE SENIOR DEPUTY PRESIDENT: As to when it was sent out and what it forms I know not.

PN115

MR EVANS: I have a pack here which I would like to pass through to your associate. It contains three letters. One is a letter from the Director of Nursing, Ms Judy Gilbertson, to all the employees advising them of the commencement of the Enterprise Agreement and also at the same time because we want to implement salary sacrifice arrangements to our nurses because of our PBI status, sir. Attached to that was another letter dated 26 March to Enterprise Bargaining from Ms Gilbertson to the RNs and ENs and specifically was identified that the ANF representative would be most welcome to attend if they wish.

PN116

Attached to that, sir, there is a further letter dated 11 April from Ms Gilbertson to Mr Roger Kelly, the allocated organiser of the ANF for this site and we acknowledged his letter of 4 April that he would be attending our negotiations and that we welcomed his involvement but we also did advise at that time, on 11 April letter, that we would be seeking to establish enterprise agreement under section 170LK. The Australian Nursing Federation were advised of that intention at the time. I believe those documents would meet the requirements of 170LK(4).

PN117

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN118

MR EVANS: Thank you sir. And also I think, in terms of the recent decision of D P Hamilton, of your colleague who has made recent decisions and the Austral decision I think that subject to reading it for a second time, I think that we would probably find that we would meet that test as well.

PN119

THE SENIOR DEPUTY PRESIDENT: Ms Brophy, Ms Tintor, you can confirm to me can you that you were in fact given that requisite 14 days notice in writing of the employer's intention to make the agreement, the 14 days being 14 days before the employees finally voted to endorse the agreement?

PN120

MS BROPHY: Yes we were.

PN121

THE SENIOR DEPUTY PRESIDENT: The agreement wasn't changed during that time?

PN122

MS BROPHY: No.

PN123

THE SENIOR DEPUTY PRESIDENT: And that that advice included the capacity or invitation for a person to seek the involvement of the union?

PN124

MS BROPHY: Yes.

PN125

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN126

MR EDWARDS: Sir, if it pleases the Commission, I do have a packet of information of the voting pack that went out on 14 October reaffirming the right for the ANF for assistance if you would like to have that information.

PN127

THE SENIOR DEPUTY PRESIDENT: Yes, well let us deal with them one by one, Mr Edwards. I will mark the documents that you have given to me which represent the notice of intention to make the agreement pursuant to section 170LK(2), as LHI2.

EXHIBIT #LHI2 NOTICE OF INTENTION

PN128

THE SENIOR DEPUTY PRESIDENT: I am now happy to receive anything else you want to give me.

PN129

MR EDWARDS: Thank you sir. This documentation is the voting pack documentation that we provided giving the clear 14 days notice as required for 170LK(2) and that went out with the agreement. I don't have the actual agreement attached to this pack because it is before you now but this contains a covering memorandum, explanatory notes and ballot paper, sir.

EXHIBIT #LHI3 COVERING MEMORANDUM, EXPLANATORY NOTES AND BALLOT PAPPERS

PN130

THE SENIOR DEPUTY PRESIDENT: Now, Ms Edwards can I take it the union does not take issue at all with the process followed by the employer pursuant to section 170LK of the Act?

PN131

MS EDWARDS: No sir.

PN132

THE SENIOR DEPUTY PRESIDENT: Thank you. Is there anything further you want to add, Mr Evans?

PN133

MR EDWARDS: No sir, other than to say that this is a culmination of a long period and we are very pleased with the process that we have been able to resolve and we appreciate the assistance of the ANF during this process and we have since appreciated your assistance in this matter in July as well. Thank you very much.

PN134

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Brophy or Ms Tintor, is there anything you want to add?

PN135

MS BROPHY: No.

PN136

MS TINTOR: No.

PN137

THE SENIOR DEPUTY PRESIDENT: Ms Edwards?

PN138

MS EDWARDS: Yes sir, if I could just take a moment of your time.

PN139

THE SENIOR DEPUTY PRESIDENT: Yes.

PN140

MS EDWARDS: I just really wanted to reiterate that it was never ANFs intention to expect that this process would go back out to ballot but we thank you for allowing us to be bound and we apologise for any confusion. Thank you sir.

PN141

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Evans, I'm not prepared to certify the agreement as of today. The reason for that is I want the employee representatives to have the opportunity to look at the document which I have called LHI1. I can however indicate that, on the basis of that which I have been told today, and more particularly the information contained in the statutory declarations and the documents provided to me, I am satisfied that the process that was followed in this matter was consistent with section 170LK of the Act.

PN142

I am similarly satisfied that the agreement itself contains the necessary dispute resolution provision, it contains the necessary duration date and that it does not contain provisions that are contrary to the Act. Until such time as the employee representatives confirm to me the accuracy of that wages schedule I will not make a finding relative to the no disadvantage test. I would propose though that if the employee representatives confirm to me within the next week, their agreement with the information contained in LHI1 then I would then look at the issue of the no disadvantage test. If, on that basis, I am satisfied that the agreement meets the requirements of that test, the agreement would be certified from that particular date, that is the date I receive that information or the last of the information from the employee representatives.

PN143

I can advise the parties that my intention is to make an order to pursuant to section 170M of the Act determining that the Australian Nursing Federation is a party to, or is bound to the agreement, that determination would be made with effect from the date of certification of the agreement and it would be sent out to the parties as a determination pursuant to section 170M(3) of the Act. In the event that i didn't receive information from the parties so as to confirm the authenticity of LHI1, then I will reconvene the matter so as to try to work out what has come off the rails.

PN144

On the basis that I am optimistic that the parties will be able to confirm that material, I can advise you now that the certificate that will be sent out would detail the various clauses about which I have sought clarification but it won't detail the answers that I have been given because they are recorded on the transcript. Being the eternal optimist I congratulate the parties on enduring the process and finally reaching agreement and trust that both this agreement operates to benefit both the employer and the parties to the - the employee parties to the agreement and that you don't have quite so much difficulty next time around. I will adjourn the matter accordingly.

ADJOURNED ACCORDINGLY [11.49am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #LHI1 WAGES SCHEDULE PN74
EXHIBIT #LHI2 NOTICE OF INTENTION PN128
EXHIBIT #LHI3 COVERING MEMORANDUM, EXPLANATORY NOTES AND BALLOT PAPPERS PN130